Willy Strikes Again

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Willy Strikes Again

February 23, 2010 Scandal! 3 comments

On the heels of my previous post, concerning a 2000 copyright infringement suit brought against author J. K. Rowling, comes news of new allegations that the Harry Potter scribe may have lifted material from a fellow writer. The author in question, the late Adrian Jacobs, penned a little-known 40-page children’s book back in 1987 — a decade before the first Potter release — called The Adventure of Willy the Wizard, No. 1 Livid Land. According to the Jacobs estate, which is initiating the suit, it was he and not Rowling who first conjured up “the idea of wizard prisons, hospitals and schools.” Rowling has responded by saying that the charges are “not only unfounded but absurd.” The Jacobs estate estimates that the suit could be worth a billion dollars.

I don’t have much information about the case beyond the press reports to which I’ve linked above, so I want to be cautious about offering too much commentary here. I will say, however, that I find it difficult to accept the plaintiff’s claim that Rowling’s borrowings are “substantial,” given the brevity of the Willy book. This sounds to me like an attempt to claim ownership of a general concept, which would contravene the longstanding idea-expression divide within U. S. copyright law. In a nutshell, the law says you can only copyright the specific iteration of an idea, and not the idea itself. Everything in this case consequently hinges on the question of the specificity of Rowling’s alleged borrowing.

The Willy case reminds of another recent one. In 2006, Da Vinci Code author Dan Brown was sued by the authors of Holy Blood, Holy Grail, who alleged that Brown had absconded with 15 central themes from their book, as well as its basic plot architecture. But the judge in the case, Justice Peter Smith, disagreed. In his ruling he noted: “It is true that aspects of the Central Themes can be traced through the textual parts identified by the Claimants. That is because the Central Themes are too general and nothing significant is to be concluded from that identification.” (Hats off, by the way, to Justice Smith. Apropos of the bestselling book in question, he laced the ruling with a secret code of his own.)

Even if the allegations made by the Jacobs estate ultimately don’t hold up in court, they nevertheless underscore a tension that lies at the heart of all of the Harry Potter litigation — including that brought by Rowling herself. We’re dealing with a book series that, however original in its own right, nonetheless makes copious use of themes, character types, and narratives that are ubiquitous in Western culture. The fact that there’s significant overlap with the work of other writers shouldn’t surprise anyone, least of all J. K. Rowling.

Amazon Goes All 1984 on Kindle Owners

July 20, 2009 Bookselling, Scandal! 3 comments

News broke over the weekend that Amazon.com decided to remove legally purchased but unlawfully licensed editions of books by George Orwell from the Kindles of some customers. The company did so without asking, although at least it had the good sense of sending an email explaining the action and of issuing refunds for the transactions.

Ever since, Kindle customers and technology watchers alike have been aghast at how Amazon essentially reached into the Kindles of unsuspecting Orwell fans and deleted what they had mistakenly believed to be their private property. Take Hugh D’Andre of the Electronic Frontier Foundation, for instance, who wrote: “Can you imagine a brick-and-mortar bookstore chasing you home, entering your house, and pulling a book from your shelf after you paid good money for it?”

Others such as Jonathan Zittrain have rightly pointed out that you don’t actually own Kindle content. Instead you basically lease it from Amazon.com, who as the custodian of your Kindle controls most of the rights to that material in the end.

Amazon, for its part, has promised never, EVER to take such drastic action again — sort of. “We are changing our systems so that in the future we will not remove books from customers’ devices,” notes a company spokesperson, adding, “in these circumstances.” The devil, it seems, is in the details. Thus I am inclined to agree with Cory Doctorow over at BoingBoing who states, “Amazon claims that they won’t do this again. But as every good novelist knows, ‘A gun on the mantlepiece in act one must go off by act three.'”

By now most everyone in the literary and tech worlds has chimed in on the scandal, and the consensus seems to be that Amazon overstepped its bounds. Clearly. But my question is this: why is anyone surprised at all by the company’s actions? Did anyone actually believe that Amazon would act in good faith toward its Kindle customers and their Kindles, when it has a direct portal into the inner lives of each and every one of their e-readers?

The problem stems from a fundamental misrecognition of what Amazon is. It started out as a bookseller, and with its recent foray into Kindle it’s continued to cultivate an air of bookishness. But indeed this is little more than an air. Despite what CEO Jeff Bezos and others might say, Amazon.com is totally and completely dispassionate about books. What it is passionate about is making money, and it will sell anything — from books to toilet paper to excess server capacity or warehouse space — to earn a buck.

What that means, then, is that Amazon does not subscribe to the liberal sensibilities with which book culture has long been associated. In other words, it holds little regard for the sanctity of property (other than its own), privacy, or free expression. For Amazon these are values only insofar as they can contribute to the company’s value stream. When they don’t, or when they prove too costly, those values are dispensed with algorithmically.

The other issue concerns the apparent irony that many of my fellow bloggers have already pointed out. Amazon didn’t just delete any old books from people’s Kindles. Among others it deleted George Orwell’s dystopic novel 1984, which dramatizes life in a futuristic totalitarian state. The problem here, though, is that however “deliciously Orwellian” Amazon’s actions may seem, Amazon.com is not a state. It is a corporation, which is accountable not to “the people” but to its shareholders.

I understand the reasons for wanting to draw the comparison to 1984, but ultimately it’s an inappropriate one. As Daniel J. Solove points out in his wonderful book on privacy The Digital Person, the more apt literary reference in circumstances such as this may be to Kafka’s Trial, in which people are prosecuted without ever fully knowing what if anything they’ve done wrong.

Two Little Words

May 17, 2009 Scandal! No comments

Sorry about the unanticipated hiatus. The usual end of the semester crunch, well, crunched a couple of weeks ago. After that, I was working on some administrative stuff, the details of which probably would bore you. Suffice it to say that I’m back in blogging action, and happy to be here.

My friend Colleen alerted me to this Time magazine article, which riffs off of a piece published a few days earlier in Vanity Fair: “James Frey Gets a Bright, Shiny Apology from Oprah.” The title pretty much tells you all you need to know. Talk show host Oprah Winfrey said two little words — “I’m sorry” — to author James Frey, three years after flambeeing him publicly on The Oprah Winfrey Show.

Some quick back story, for those of you who may have missed it. In September 2005, Winfrey selected Frey’s harrowing memoir of drug addiction and recovery, A Million Little Pieces, for Oprah’s Book Club. Sales immediately spiked, as they always do when Winfrey gives a book her seal of approval. There was just one little problem with A Million Little Pieces: it was a fabrication, or at least partly so, as The Smoking Gun reported in early January, 2006. Winfrey initially defended the book and its author, but eventually she made an about-face. She invited Frey back onto Oprah along with his editor, Nan Talese, and confronted the author about his having lied.

“Confronted” may be too tepid a word. I don’t know about you, but sometimes I get embarrassed for people who totally go down in flames on TV. That’s pretty much how I felt on January 26, 2006, as I watched Winfrey rake Frey over the coals for 60 excruciating minutes.

When author Jonathan Franzen dissed Oprah back in the fall of 2002, after Winfrey had selected his wonderful novel, The Corrections, for the book club, she just canceled his invitation to the show and that was the end of it. When asked years later about the whole Franzen brouhaha, Winfrey replied by saying that Franzen “was not even a blip on the radar screen of my life.” Ouch.

But Frey, it seems, is the blip who doesn’t ever quite disappear from Winfrey’s radar screen. Why is she only now beginning to let go of Frey and his mendacity?

There’s something profoundly anthropological about the Frey controversy. It is as if Frey’s lies fundamentally breached the book club’s cosmic order. To repair the damage, high priestess Winfrey needed to sacrifice or cast out the offending party, which of course she did. Homeostasis only would be restored in the community years later, after Frey was redeemed through a kind of purification ritual. Okay, so it was in Vanity Fair, but you get the point. (Would that he appeared for a third time on The Oprah Winfrey Show!)

What all this suggests to me is that Oprah Winfrey hasn’t just produced a talk show, a book club, a magazine, or even a brand name. Around her there has arisen a unique system of valuation, a distinctive array of artifacts, and a discernible set of practices and social identifications. In other words, what she’s produced is a bona fide culture.

The term “cultural producer” often is used to describe pretty much anyone who makes stuff — which is to say, it’s an awfully overapplied term in the age of blogs, YouTube, and more. What the whole Frey fiasco shows us is that Wifrey is one of the few entities who genuinely deserves the name.

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